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Balancing Minority Rights and Gender Justice: the Impact of Protecting Multiculturalism on Women's Rights in India

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Balancing Minority Rights and Gender Justice: the Impact of Protecting Multiculturalism on Women's Rights in India Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on Women's Rights in India By Pratibha Jain* INTRODUCTION Can domestic legislation honor both the rights of women and the rights of cultural minorities within liberal political systems?' Or are the two goals neces- sarily at odds? Policy makers debate the role of multiculturalism in modem liberal societies and its effect on rights of women. Determining the most con- structive approach for a state seeking to accommodate these competing interests requires that policy makers be sensitive to the needs of various cultural commu- nities as well as to the needs of women or other marginalized populations. Per- haps nowhere is this challenge as currently significant as it is in India, a majority Hindu nation that is also home to 138,000,000 Muslims-the third largest Mus- lim community in the world-and 24,000,000 Christians,2 and which has seen recent and vehement upsurges in both demands for minority rights and concomi- tant violence against religious minorities. This paper studies the impacts of granting group rights to religious and cultural minorities within a nation-state, recognizing that such an entity can be comprised of multiple nations,3 and examines the methods legislators and judges * B.A. (Economics), Delhi; LL.B., Delhi; B.C.L., Oxford; LL.M., Harvard. Visiting Lec- turer, School of Accounting & Finance, Hong Kong Polytechnic University. I would like to thank my husband for giving me the courage to publish this paper. I would also like to thank Professors Granville Austin, Michael Davis, M.P. Singh, Henry Steiner and Mr. N. Ravi for their valuable comments on an earlier draft of this Article, and the editors of BJIL for their excellent work in editing this Article. However, all errors remain my own. 1. For the purpose of this paper, I assume legal and political equality for all citizens to be a basic tenet that defines liberal democracies. For example, India guarantees equal rights to its citi- zens irrespective of race, gender, ethnicity, or language through its Constitution, whereas theocratic states have legal structures that reflect the religious laws of the majority religious communities in those countries. 2. Census of India, DATA ON RELIOoN 2001, at http://www.censusindia.net/religiondata/ Religiondata_.2001.xls. 3. Sarah V. Wayland explains that a nation-state requires both "common culture, broadly defined ... [and] bounded territorial space .... A 'nation-state' exists when the boundaries of the nation, or people, are the same as the boundaries of the state, or political entity." Sarah V. Wayland, Citizenship and Incorporation: How Nation States Respond to the Challenges of Migration, 20 FLETCHER F. WORLD AFi. 35, 36 (1996). 202 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:201 in India have used to navigate this balancing act as an example. India is a mul- ticultural and pluralistic democracy, which through its Constitution provides a comprehensive framework for protecting and promoting the rights of religious, cultural, and linguistic minorities. Its successes and failures in balancing mul- ticulturalist goals against women's rights are instructive of viable and non-viable constitutional, legislative, and judicial strategies a state might adopt to protect both the rights of women and the rights of cultural minorities.4 Part II outlines the debate surrounding the role of multiculturalism in mod- em liberal societies and its effect on the rights of women. Part III briefly dis- cusses terminology and then deconstructs certain assumptions within the above debate as to the meanings of culture, multiculturalism,and group rights. Part IV considers multicultural approaches to governance, with India as a case study of successes and lessons for the future. Part V explores possible solutions, includ- ing a constitutional amendment that would affirm the rights of women within a scheme that still protects group rights. I. THE DEBATE A classical liberal rights scheme bestows rights on individuals rather than groups. These rights are generally "negative" rights such as freedom from gov- ernment interference in one's speech, religion, and political ideology, or the right to freedom from discrimination. Barry Brian explains that this "strategy of privatization" can only conceive of individuals, and not groups, as possessors of human rights, because providing individuals with civil and political rights against state action gives them the necessary protection to promote their cultural identities without sacrificing either their individual rights or their right to culture.5 Those concerned with maintaining the existence of minority cultures within a dominant national majority culture worry that such a classical scheme based on individual rights cannot adequately protect minority cultures. They seek the implementation of specific legal obligations on the state not only to abstain from interfering with the group rights of minorities but also to provide affirmative support for the enjoyment of such rights, which range from negative rights such as the right to group existence 6 and the right to equality and freedom from dis- crimination, to positive rights such as the right to establish autonomous regimes through their right to self-determination and fulfillment of social and economic rights. 4. See generally Martha C. Nussbaum, India: Implementing Sex Equality Through Law, 2 CHI. J. INT'L L. 35 (2001). 5. BARRY BRIAN, The Strategy of Privatization, in CULTURE AND EQUALITY: AN EGALITA- RIAN CRITIQUE OF MULTICULTURALISM 19-62 (2001). 6. The right to group existence is established in the Convention on the Prevention and Pun- ishment of the Crime of Genocide, Dec. 9, 1948, art. II, G.A. Res. 2670, 3 U.N. GAOR, pt. 1, U.N. Doc. A/810, p. 174, 78 U.N.T.S. 277 (criminalizing "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such"). 2005] BALANCING MINORITY RIGHTS AND GENDER JUSTICE 203 Without legal protection, group-rights advocates worry that minority groups will always be at a disadvantage within the wider society. 7 In a rapidly changing world, in which cultural identity forms states, and in which mass me- dia can penetrate even the most isolated village, minority cultures are frequently undermined by social and economic forces beyond their control and the control of their governments, no matter how sympathetic. These advocates argue that only when states recognize group rights as necessary human rights will cultural minorities be able to survive in a global environment that is often hostile to their 8 very existence. Article 27 of the International Convention on Civil and Political Rights (ICCPR) exemplifies this conception of group rights, guaranteeing "ethnic, re- ligious, or linguistic minorities ... the right ... to enjoy their culture, to profess and practice their own religion, or to use their own language." 9 Couched in both individualistic and collective terms,10 the notion of group rights has been used to advocate for the governance of minority groups by separate and culturally spe- cific laws. In India, such group rights include personal law regimes, the concept of which can be traced back to the colonial era wherein the early colonial states promised the various religious communities their own set of laws to govern "in- heritance, marriage, caste, and other religious usages or institutions."11 Personal laws are sometimes used as cultural defenses to criminal prosecutions and as justification for the observation of cultural practices that have a tendency to discriminate against women. 12 Such discriminatory personal or group laws gov- ern women in various Indian communities.13 Feminist legal scholars worry about the impact group rights have on the rights of women. 14 Because group rights provide the leaders within a group the power to discriminate against the weaker members within the group, a legal commitment to group rights may prove detrimental to women.1 5 Combined with the fact that defining culture seems to be the prerogative of the leaders 7. See generally BHTKHu PAREKH, RErINKING MULTICULTURALISM: CULTURAL DIvERsITY AND PoLITICAL THEORY (2000). 8. See, e.g., Eric J. Mitnick, Three Models of Group-DifferentiatedRights, 35 COLUM. HUM. RTS. L. REv. 215 (2004). 9. International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 27, GA res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966); 999 U.N.T.S. 171 [hereinafter ICCPR]. 10. See HENRY J. STEINER & PHILIP ALSTON, Comment on Autonomy Regimes, in INTERNA- TIONAL HUMAN RiGHTS IN CoNTEXT: LAW, POLITICS, MORALS 992-93 (Henry J. Steiner & Philip Alston eds., 1st ed. 1996). 11. Kunal Parker, Observations on the HistoricalDestruction of Separate Legal Regimes, in RELIGION AND PERSONAL LAW IN SECULAR INDIA-A CALL TO JUDGMENT 184 (Gerald James Larson ed., 2001). 12. See, e.g., Ronald R. Garet, Communality and Existence: The Rights of Groups, 56 S. CAL. L. REv. 1001 (1983). 13. See Kirti Singh, Obstacles to Women's Rights in India, in HUMAN RIGHTS OF WOMEN- NATIONAL & INTERNATIONAL PERsPECTIVES 375-396 (Rebecca Cook ed., 1994). 14. See generally Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REv. 1573 (1996). 15. See generally, Susan Moller Okin, Justice and Gender: An Unfinished Debate, 72 FORD- HAM L. REv. 1537 (2004). 204 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:201 within the group, who are traditionally men, group rights appear juxtaposed against women's rights. In India for example, Muslim fundamentalist leaders historically used the personal laws as tools for denying equality to Muslim wo- men, while "[tihe state continued to privilege group rights over the equality rights of Muslim women, rather than insisting on reform."' 6 Granting group rights to preserve patriarchal traditional cultures thus sometimes appears at odds with a feminist project. The ever-widening wealth disparity between first-world and third-world na- tions, increasing global poverty, international market integration, and globaliza- tion has spawned massive trans-border displacement of peoples and cultures.
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